Legal Research
Cases
Saville v Hallmarc Construction Pty Ltd

Saville v Hallmarc Construction Pty Ltd

Link copied

Case Copied 27 November 2015 65 min read

Contents

On this page

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0132

GREGORY PAUL SAVILLE (trading as CHINA SOURCING SERVICES)	Appellant
v
HALLMARC CONSTRUCTION PTY LTD (ACN 071 149 758)	Respondent

---

JUDGES:	WARREN CJ, TATE and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 May 2015
DATE OF JUDGMENT:	27 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 318
JUDGMENT APPEALED FROM:	[2014] VSC 491 (Vickery J)

---

ADMINISTRATIVE LAW – Judicial review – Adjudication determination under Building and Construction Industry Security of Payment Act 2002 – Reference date as a jurisdictional fact – Whether adjudication determination reviewable for jurisdictional error – Judicial review of matters not confined to straightforward calculation of time or where determination is arbitrary, capricious or otherwise irrational – Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 applied; Sugar AustraliaPty Ltd v Southern Ocean Pty Ltd [2013] VSC 535 applied – Adjudicator fixed wrong reference date.

CONTRACT – Building contract – Adjudication determination under Building and Construction Industry Security of Payment Act 2002 – Scope of works under the contract – Pre-contractual negotiations – Source of the construction contract – Whether payment claim served out of time – Adjudication determination invalid.

PRACTICE AND PROCEDURE – Application to adduce further evidence – Evidence available and in applicant’s possession before trial – Unclear that adducing evidence would produce different result – Refaat v Barry [2015] VSCA 218; Clark v Stingel [2007] VSCA 292, considered.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Clarke	Vic Bar Pro Bono Scheme
For the Respondent	Mr M A Robins QC with Mr A Rollnik	Kliger Partners

WARREN CJ
TATE JA:

TABLE OF CONTENTS

Introduction and summary..................................................................................... 1

The statutory scheme ………………..………………………………………………. 3

The construction contract …………………………………………………………… 8

Submissions made to the adjudicator …............................................................... 11

The adjudicator’s determination ........................................................................... 15

The judge’s reasons .................................................................................................. 17

The grounds of appeal ................................................................................................... 23

The notice of contention ............................................................................................... 25

The issues ……………………………………………………………………………… 26

(1)       The scope of reviewable error by the adjudicator …………………….... 26

(2)       The scope of works under the construction contract ………………….. 47

(3)       The source of the construction contract ……………………………….. 54

The application to adduce further evidence ………………………………………... 58

Conclusion on the notice of contention …………………………………………... 63

Conclusion on the appeal ……………………………………………………………. 63

- - -

Introduction and summary

This is an appeal from an application for judicial review of an adjudication determination under the Building and Construction Industry Security of Payment Act 2002 (‘the Act’). It primarily concerns the question of whether the appellant,[1] Gregory Saville (‘Saville’), was out of time when he purported to serve a first payment claim under the Act and whether the judge was correct in holding that a determination by an adjudicator that Saville was within time was void.[2] The appeal also raises the question of the scope of the reviewability of a decision by an adjudicator appointed under the Act.
[1]There was no requirement for leave to appeal. The Notice of Appeal was filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Saville v Hallmarc Construction Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] VSCA 318
Decision Date: 27 November 2015

CaseChat Overview and Summary

In the case of Saville v Hallmarc Construction Pty Ltd, the plaintiff, Saville, sought judicial review of an adjudication determination made under the Building and Construction Industry Security of Payment Act 2002. The adjudication determined a dispute between Saville and Hallmarc Construction Pty Ltd regarding the scope of works under their building contract. The primary issue for the court was whether the adjudication determination was reviewable for jurisdictional error and if the determination was invalid due to an incorrect reference date.

The court addressed the jurisdictional error by examining whether the adjudicator fixed the wrong reference date, a critical fact necessary for the determination of the dispute. The court found that the reference date was a jurisdictional fact and that the adjudicator had indeed fixed the wrong reference date. This error rendered the determination invalid as it did not adhere to the statutory requirements. The court applied principles from Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd and Sugar Australia Pty Ltd v Southern Ocean Pty Ltd, which established that judicial review of such matters is not limited to straightforward calculation of time or arbitrary decisions, but also includes errors concerning jurisdictional facts.

Furthermore, the court considered whether the payment claim was served out of time. The court concluded that the adjudication determination was invalid as it was based on an incorrect reference date, which was a matter of jurisdictional fact. Consequently, the court found that the adjudication determination was not valid and could be set aside on the grounds of jurisdictional error.

The court did not entertain an application to adduce further evidence as it was unclear whether this would produce a different result, consistent with the principles outlined in Refaat v Barry and Clark v Stingel.

Orders